The Research On The Hearing System Of The Arrest

Arrest,as the most severe compulsory measures stipulated in the Criminal Procedure Law, clearly deprives personal freedom, so the application of arrest must be extremely careful to avoid improper infringement on the citizens’ personal rights. To better effectively protect the basic right of criminal suspects, which is the right of personal freedom, in accordance with Criminal Procedure Law, the People’s Procuratorates is responsible for conducting reviewing the authorizing arrests. Rigorous reviewing procedures are stipulated to prudently apply the arrest measure. The new Criminal Procedure Law approved at the2012National people’s Congress (hereinafter referred to as2012Criminal Procedure Law) states more stringent requirements on the arrest review.It is necessary to implement a litigation reform on arrest reviewing process in line with the reform concept of pre-trial procedure litigation and let it gain a seamless connection with trial procedure in order to prudently apply the right of reviewing arrest and to protect the criminal suspects against infringing on their personal freedom rights. By doing that, country’s arrest review process will be more scientific and rational. Integrating the hearing system into the arrest review process and making some legalizing reform on hearing system,which is a widely used reviewing pattern in every field, are conducive to materializing the rationalization of our country’s arresting measure and exterminating the abusing of arrest;at the same time,our country’s Criminal Procedure Law will go forward along a more modernized direction.In our country,the provisions of the hearing system first appeared in the field of Administrative Law, and are more applied in the administrative examination and approval;meanwhile are widely used in social and public affairs. While arrest hearing system is used in the reviewing arrest process. The arrest reviewing parties from the Procuratorate with a related case arc acting as the neutral party to take part in the hearing; all relevant parties are entitled to take part in the hearing.The discussion will be centered on whether the criminal suspect or defendant should be arrested. This result will be given based on the hearing. The arrest hearing system are based primarily on4principles:1、equality;2、procedure;efficiency;4、defense.Through the observation of our country’s current review arrest procedures, four inefficiencies can be found:the administrative-like review arrest procedures;the absence of speech on the part of criminal suspects and defendants;the lack of effective supervision of arrest review process and the lack of transparency of arrest review procedure. All these problems call for introducing new arrest measures to protect the basic rights of criminal suspects and defendants,and to rationalize the application of arrest measures. The establishment of arrest hearing system acts as a countermeasure to the above problems, which is the necessity of establishment of arrest hearing system.On the basis of discussion of necessity, the present thesis talks about the feasibility of establishing the arrest hearing system from3aspects, namely: innovation of the concept of the Criminal Procedure Law、the inspection of extra-territorial detention hearing system and the reforming experiments of intra-domain arrest hearing. The concept that the legitimate rights of the criminal suspects should be protect and the extension of the pre-trial procedure litigation of criminal system are the spiritual basis of the establishment of arrest hearing system. The experience of extra-territorial arrest hearing practice and the intra-domain beneficial trial of judicial organs lay empirical basis for arrest hearing system.The specific construction of the arrest hearing system should first establish the relevant principles for the arrest hearing system to follow, including:1、public hearing;2、the equal confrontation prosecution and the defense;3、three principles of hearing. The specific division of the application of the arrest hearing system, in line with the2012Code of Criminal Procedure,will be summarized as six types of cases:the suspect and the defendant request;the cases with the possibility of major violations of law in the investigation of the cases; the application of arrest cases may not meet the conditions of arrest cases;the defense counsels ask for a hearing on the case; the juvenile delinquency cases and the cases of procuratorial organs.The basic structure of the arrest hearing system should be set for the "isosceles triangle structure ",which is similar to the trial proceedings. The People’s Procuratorate is responsible for the review arrest of a specific case with the prosecutors as chairman of the hearing, and the surveillance authorities, the suspect (defendant). the defense lawyers, witnesses and other participants in the proceedings to participate in public hearing on the application of the measure of arrest. The establishment of arrest hearing system give the suspect and the defendant a greater voice, who have the platform of equal confrontation with the reconnaissance organs.The involvement of defense counsel is to enhance the right to defense of the suspect in the investigation stage. The prosecutor makes the final fair decision to whether or not to approve the arrest after hearing the both sides.At the same time,the hearing decision on authorizing arrest should give the criminals appropriate relief program.